Mabo and Native Title:Origins and Institutional

Implications

Edited byW. Sanders

Centre for Aboriginal Economic Policy ResearchAustralian National University, Canberra

Research Monograph No. 71994

First published in Australia 1994.

Printed in Australia by Goanna Print, Fyshwick, ACT.

© Centre for Aboriginal Economic Policy Research, Australian National University.

This book is copyright. Apart from any fair dealings for the purpose of private study,research, criticism or review as permitted under the Copyright Act 1968, no part may bereproduced by any process without written permission. Inquiries should be directed tothe publisher, Centre for Aboriginal Economic Policy Research, Australian NationalUniversity, Canberra ACT 0200, Australia.

National Library of AustraliaCataloguing-in-publication entry

Sanders, William G. (Editor), 1956- .Mabo and Native Title: Origins and Institutional Implications

ISBN 07315 2008 4.

[1] Aborigines, Australian - Land tenure. [21 Torres Strait Islanders - Land tenure. [3]Land tenure - Economic aspects - Australia. [4] Land tenure - Law and legislation -Australia. I. Sanders, Will. II. Australian National University. Centre for AboriginalEconomic Policy Research. (Series: Research Monograph (Australian NationalUniversity. Centre for Aboriginal Economic Policy Research); no. 7).

333.20899915

Foreword

In early 1993, the Faculty of Arts established close links with the ResearchSchool of Social Sciences (RSSS) Reshaping Australian Institutions (RAI)Towards and Beyond 2001 Project with the jointly-funded appointment ofDr Will Sanders to head the Reshaping the Institutions of AboriginalAustralia Strand of the Project. Dr Sanders immediately sought tostrategically establish the significance of the Strand with a high profile andvery topical seminar series Mabo and the Recognition of Native Title:Origins and Implications for the Institutions of Aboriginal Australia. Inconvening the series, Sanders opted to invite academics either working at,or visiting, the Australian National University (ANU) under the auspices ofthe RAI Project (Frank Brennan and Garth Nettheim), other visitors(Jeremy Beckett and Henry Reynolds) and Jon Altman from the Faculty ofArts. He was fortunate that Marcia Langton, Chair of the AustralianInstitute of Aboriginal and Torres Strait Islander Studies and employee ofthe Cape York Land Council who was a member of the indigenous teamnegotiating native title legislation was able to provide a seminar while inCanberra.

The series, while planned early in 1993, could not have been bettertimed, in terms of debate about the formulation of Australian public policy.It ran during November 1993 when the native title legislation was in theprocess of negotiation and drafting. Three seminar givers (Nettheim,Langton and Altman) were fortunate to have the Native Title Bill releasedprior to their presentations. The topicality of the series was evidenced by itspopularity; some seminars attracted very large audiences.

There was a great deal of interest in the seminar series from outsidethe Australian National University and it is partly for this reason that acommitment was made to publish available written versions of theseminars as quickly as practicable in the Centre for Aboriginal EconomicPolicy Research Monograph series. We hope that this volume can furtherinform and advance the very young debate in Australia about native title,an issue that the RAI Project will no doubt re-examine in future years.

Jon Altman, Faculty of ArtsJohn Braithwaite, RSSS

ANU, Canberra

May 1994

Acknowledgments

Numerous people and organisations have assisted with the production ofthis monograph. I would like to thank the authors for prompt submission ofpapers, Krystyna Szokalski and Linda Roach for sub-editing, Hilary Bek,Belinda Lim and Jon Altman for proofreading and the AustralianGovernment Publishing Service for assistance with referencing styles. Thelatter proved a particular challenge as we attempted to marry legal andsocial scientific styles. I trust the outcome is adequate, if not perfect.

I also wish to acknowledge the financial support of the ReshapingAustralian Institutions Project for some speakers' travel costs and theCentre for Aboriginal Economic Policy Research for production costs.

Will SandersCAEPR

May 1994

Contents

Foreword by Jon Altman and John Braithwaite iii

Acknowledgments iv

Abbreviations and acronyms vi

1. IntroductionW. Sanders 1

2. The Murray Island land case and the problem of culturalcontinuityJ. Beckett 1

3. Origins and implications of Mabo: an historical perspectiveH. Reynolds 25

4. Mabo: options for implementation - statutory registrationand claims processesF. Brennan 31

5. Mabo and Aboriginal political rights: the potential forinherent rights and Aboriginal self-governmentG. Nettheim 46

6. Economic implications of native title: dead end or wayforward?J.C. Altman 61

References 78

Contributors 83

Abbreviations and acronyms

ABTA Aboriginals Benefit Trust AccountABTF Aborigines Benefits Trust FundALJR Australian Law Journal ReportsALR Australian Law ReportsATSIC Aboriginal and Torres Strait Islander CommissionAUSLIG Australian Surveying and Land Information Group

CERD Convention on the Elimination of All Forms of RacialDiscrimination

CAEPR Centre for Aboriginal Economic Policy ResearchCAT Committee Against TortureCLR Commonwealth Law ReportsCTP Community Training Program

DLR Dominion Law Reports (Canada)

FLR Federal Law Reports

ICC Islander Co-ordinating CouncilICCPR International Covenant on Civil and Political RightsISECSR International Covenant on Economic, Social and Cultural

Rights

LMS London Missionary Society

NLC Northern Land Council

Referencing

The papers in this monograph contain references to legal, social scientificand more general sources. Footnotes at the end of each paper containcomprehensive listings of authors' sources. The references at the end of themonograph list published articles and books and some legal material, butnot legal case judgements or newspaper articles.

1. Introduction

W. Sanders

The High Court's recognition of native title in Australia by a majority ofsix to one in the Mabo judgements of June 1992 was referred to, in oneearlier collection, as a 'judicial revolution'.1 The implications of thisrevolutionary change in the common law were potentially vast. Notsurprisingly, the Commonwealth Government sought fairly quickly toconsider its position on native title. A committee of Commonwealthministers, chaired by the Prime Minister and assisted by a high-levelinterdepartmental committee, was established to look at the issues inOctober 1992.

It was, in principle, open to the Commonwealth Government toleave matters arising from the recognition of native title to the courts andthe common law. A series of Mafeo-style claims could have proceeded,refining and developing the common law without CommonwealthGovernment action. However, as 'consultations' between the Governmentcommittees and interested parties progressed, this course of action seemedless and less a possibility. The Mabo case had established some basicfeatures of native title, but had left unanswered many finer points of law.Community uncertainty about the implications of native title seemed to befeeding on and magnifying this legal uncertainty. The Government beganto take the view that the identification of native title and its implicationsneeded to be expedited and clarified by statutory mechanisms.

These developments of late 1992 and early 1993 occurred withoutgreat media attention or public debate. Indeed the Commonwealth electioncampaign of February-March 1993 was notable for its lack of attention tothe native title issue. This, however, changed dramatically in June 1993when the Commonwealth Government released a discussion paperoutlining what it saw as the key issues arising from the Mabo decision andsetting down a framework of principles for further discussion.2

The Commonwealth wanted to maintain the common law of nativetitle, but expedite the identification of where it existed and clarify itsrelationship to other interests in land. It wanted to establish a system ofspecific tribunals for these purposes and to resource these tribunals andclaimants before them in a manner which would allow issues to be settledquickly. It also wanted to validate past grants of land that might be held inlaw to be invalid now that native title had been recognised. This, in effect,involved the possible extinguishment of some native title, but theGovernment saw this as necessary in order to address the uncertainty ofnon-native title landholders. The Government also indicated that it wantedto address the situation of indigenous Australians who would not benefitdirectly from the recognition of native title.

All this the Government wanted to achieve quickly, in order to reduceuncertainty. It initially suggested that a bill to achieve these ends would bein Parliament by September 1993. However, negotiations to refine thisproposed package and set it in legislation proved extremely difficult. TheStates, Aboriginal, mining and pastoral interests, were all consulted andeach had strong views and concerns. All the Commonwealth Governmentcould produce by September was an outline of the proposed legislation,while negotiations continued. Stances were taken and modified as bargainswere gradually struck. Barely a day went past without the proposed nativetitle legislation being headline news.

By early November 1993 a package of proposed native titlelegislation had been worked out. None of the interests consulted by theCommonwealth Government were entirely satisfied. Most, however, werewilling to go along with the Commonwealth's proposed legislation, ifsomewhat reluctantly. The exception was the Western Australian StateGovernment which had decided to pursue legislation of its own, wantingnothing to do with the Commonwealth package.

When the Native Title Bill was introduced to the CommonwealthParliament, a further round of negotiations ensued, this time involving theminor parties in the Senate as well. A Senate Select Committee conducteda brief inquiry into the Bill. Debate over the Bill was vigorous and for awhile it looked as though the legislative process might drag on into 1994.However, in the final Parliamentary sitting days before Christmas 1993,the Native Title Act 1993 was passed into law. The CommonwealthGovernment had achieved a legislative outcome within six months of therelease of its original discussion paper. Among those consulted, only theWestern Australian State Government remained adamantly opposed andtotally dissatisfied to the end. It had passed its own legislation some threeweeks before the Commonwealth and was pursuing a somewhat differentmodel and set of priorities.

The new Commonwealth legislation respected the common lawconcept of native title and it provided for a National Native Title Tribunalto hear and determine native title claims. It provided for the validation ofpast land grants which might otherwise be held to be invalid and for afuture regime of rights and procedures applying to native title holders. Italso included the establishment of a National Aboriginal and Torres StraitIslander Land Fund to acquire land for indigenous Australians who wouldnot benefit directly from the recognition of native title.3

It was during this period of intense public debate from June 1993that the Centre for Aboriginal Economic Policy Research and theInstitutions of Aboriginal Australia Strand of the Reshaping AustralianInstitutions Towards and Beyond 2001 Project at the Australian NationalUniversity decided to convene a seminar series looking at both the originsand implications of the recognition of native title. The seminars were opento the public, free of charge, and were given during the month ofNovember 1993 at the Australian National University. The papers

presented here derive from those seminars. Some are presented much asgiven at the time, and still refer to the Native Title Bill and the events ofNovember 1993. Others have been reworked by the authors in the earlyweeks of 1994 following the passage of the Native Title Act 1993.

In the opening paper, anthropologist Jeremy Beckett, who hasworked on Torres Strait Islander issues for 35 years, gives some cultural,historical and local political background to the Murray Island case. Heinforms us that it was not until the early 1980s that Torres Strait Islandersbecame aware that the land they lived on was, in the government view, notlegally theirs and that following this realisation, it was only the MurrayIslanders, at the initiative of Koiki Mabo, who decided to pursue a legalchallenge. Mabo, Beckett notes, had been living in Townsville for manyyears and had been influenced in his thinking by sympathetic non-Islanders. Two of our contributors, Reynolds and Nettheim, receive amention in Beckett's paper as being among those who influenced Mabo.Beckett also informs us that Mabo's long absence from the Murray Islandsleft his own claim to land with some strategic weaknesses and that herecruited other plaintiffs in order to strengthen the case.

Beckett then focuses on the 1989 hearings of the QueenslandSupreme Court convened at the direction of the High Court in order todetermine issues of fact raised in the Mabo case. The hearings beforeJustice Moynihan revealed much about the Murray Islanders' land system,including its relative flexibility, points of internal conflict and potential forchange over time. Moynihan found, Beckett notes, that the MurrayIslanders did 'succeed in conveying a strong sense of the observation ofpropriety in relation to land' and thus laid the factual foundation for thereturn of the claim to the High Court for the determination of issues of law.

Beckett was himself an expert witness in those 1989 hearings, and asthe final paragraphs of his essay demonstrate, the experience and thejudge's findings clearly gave him cause to reflect both on his past work asan anthropologist and on the legal process. He argues that both lawyers andanthropologists still have trouble coming to grips with the idea of achanging, but still authentic, indigenous culture.

The second contributor, Henry Reynolds, gives historicalbackground to the Mabo case of a rather different kind. He is concernedwith the way in which traditional interpretations of Australian history andjurisprudence, which denied native title, have long complemented andsupported each other. Reynolds has, over the last 20 years, been the leadingproponent of an alternative interpretation of Australian history, which wasreferred to directly in at least one of the Mabo judgements and whichclearly underpinned the new jurisprudence recognising native title. In thispaper Reynolds is concerned to show that both British common law andinternational law of the 18th century allowed for, even encouraged, therecognition of native title. The purpose of this argument is to rebut claims,implicit in the dissenting Mabo judgement of Justice Dawson andelsewhere, that the new jurisprudence involves bad history. It was, in

Reynolds view, rather the old jurisprudence which involved both badhistory and bad law. The new jurisprudence, he argues, is already 'a majorcontribution to Australian historiography1.

The third contributor, Frank Brennan, is more concerned with thecontemporary legal implications of the native title decision than itshistorical or jurisprudential origins. He discusses the findings of the Mabojudgements in comparison with those of the 1970 Gove land rights case.He is particularly concerned with their discussion of the proprietary or non-proprietary nature of native title, which leads him into a more lengthydiscussion of options for implementation now that native title has beenrecognised.

Brennan's paper, it should be noted, has not been re-written since thetime of the seminars in November 1993. It talks of the CommonwealthNative Title Bill and the Western Australian package of legislationintended to extinguish native title and replace it with statutory 'rights oftraditional usage'. The paper reflects the degree of breakdown incooperation between the Commonwealth and Western AustralianGovernments that had occurred by November 1993. Brennan defends theCommonwealth's approach to establishing a registration and claimsprocess. He criticises the Western Australian model on many grounds andconcludes that it would prolong, rather than reduce, uncertainty. It shouldperhaps be noted in passing here that the Western Australian StateGovernment is now challenging the constitutional validity of theCommonwealth Native Title Act 1993 and two Aboriginal groups inWestern Australia are in turn challenging the validity of the StateGovernment's legislative package. Both challenges are to be heard in theHigh Court in September 1994.

The fourth contribution in the seminar series came from MarciaLangton of the Cape York Land Council. Unfortunately, due to thepressure of other commitments, Langton was not able to provide us with awritten paper. Her talk emphasised that she and others from the Cape YorkLand Council, who were then participating in negotiations with theCommonwealth Government over the Native Title Bill, were doing so aslocal and regional representatives. Indeed she noted that the Aboriginalnegotiating team was in many ways going against two national meetings ofAborigines which had resolved not to negotiate with the Government overthe proposed native title legislation, but to continue to pursue claims underthe existing common law through the courts. However, Langton and otherstook the view that if the Government was intent on passing legislation, thenthey had to negotiate what they could for their constituents. Although CapeYork is a remote area, it contains, Langton pointed out, very littleunalienated Crown land mat would be clearly claimable under the commonlaw of native title. Most of the Cape area consists of pastoral leases andclaims over these were unlikely to succeed. Langton therefore thought it aconsiderable achievement that the Aboriginal negotiation team had beenable to have included in the native title legislation provision for the

National Aboriginal and Torres Strait Islander Land Fund. She also putgreat store on the fact that pastoral leases, if acquired by Aboriginesthrough purchase, could, under the proposed legislation, still be claimedafter purchase by disregarding prior extinguishment of native title underthe lease.4 She saw these provisions of the proposed legislation as asubstantial win for the Aboriginal negotiating team and particularly forAborigines in pastoral areas. The certainty of these provisions was seen aspreferable to the uncertainty of the common law.

The next contributor, Garth Nettheim, is concerned with thepotential political implications of the recognition of native title. Now that asystem of native title to land has been recognised, he argues, there is alsothe potential to recognise more wide-ranging systems of nativegovernance. This idea is referred to as the potential for inherent rights ofAboriginal self-government. It is explored by Nettheim in relation not onlyto the findings of the Mabo case, but also in the light of developments ininternational law and in other settler majority societies, such as Canada.Nettheim clearly sees considerable potential to take further the 'unfinishedbusiness' of the 'legal/political relationships' between indigenous and non-indigenous Australians. He suggests numerous avenues for furtherexploring and expanding Aboriginal political rights.

The final contributor, Jon Altman, examines the potential economicimplications of native title. He identifies the amount of land held asAboriginal freehold under land rights regimes which preceded therecognition of native title and assesses how much more land might berecognised under native title. Although the amount of land in questioncertainly is significant - possibly up to 20 per cent of Australia - it is almostexclusively in the remote north and centre of the continent, particularlyWestern Australia. The majority of indigenous people who live in southernAustralia towards the coasts will not benefit directly from recognition ofnative title, except perhaps through the National Aboriginal and TorresStrait Islander Land Fund established under the Native Title Act 1993.Even for the minority of indigenous Australians who might benefitdirectly, Altman argues, on the basis of past experience of land rightsregimes, that the economic implications of the recognition of native titleare fairly limited. Altman discusses issues relating to property rights,transaction costs and factor endowments and suggests that the economicbenefits of native title and other statutory land rights for indigenousAustralians have often been overstated. These benefits are more potentialthan real and will often depend on indigenous Australians negotiating withmining developers. A couple of important instances of such negotiationhave already occurred since the recognition of native title and Altmanpoints to these as possible positive indicators for the future.

Altman concludes that there will be no 'sudden Mabo-\ed economictake-off for Australia's indigenous population', but also notes in passingthat there will be no 'Mafeo-instigated collapse of the mining industry'. Hisposition on the economic implications of native title is somewhere in the

middle ground between the indigenous Salvationists and the miningdoomsayers. The 'judicial revolution', it would appear, is unlikely toproduce an economic revolution.5

I trust this collection of papers will prove a useful and informativeaddition to the growing literature on the recognition of native title inAustralia. This has been an important episode in our history as a nation andit deserves much consideration and debate. These papers will mostcertainly not be the last word on native title. Indeed, one of the aspects ofthe Native Title Act 1993 which has gone almost unnoticed thus far is thatit directs the Commonwealth Parliament to establish a Joint Committee onnative title comprising five Senators and five members of the House ofRepresentatives. This body is 'to consult extensively about theimplementation and operation' of the Native title Act and to report to theParliament after two years of the Act's operation.6 This process will ensurefurther debate on the recognition of native title in the not too distant future.

Notes

1 Stephenson, M.A. and Ratnapala, S. (eds) 1993. Mabo: A Judicial Revolution,University of Queensland Press, St Lucia.

2 Commonwealth of Australia 1993. Mabo: The High Court Decision on NativeTitle, Discussion Paper, Australian Government Publishing Service, Canberra.

3 Commonwealth of Australia 1994. Native Title Legislation with Commentary bythe Attorney-General's Legal Practice, Australian Government PublishingService, Canberra.

4 See s.47 of the Native Title Act 1993.

5 Stephenson and Ratnapala, op cit.

6 See ss.204-6 of the Native Title Act 1993.

2. The Murray Island land case and the problemof cultural continuity

J. Beckett

Over the last year the media and the politicians have put a new word intocirculation: since the High Court handed down its decision on the casebrought by Edward Koiki Mabo and three other Murray Islanders, 'Mabo'has come to stand for the whole issue of Aboriginal land rights, as in'Mabo law', 'Mabo deal', 'Mabo show' and, of course, 'Mabo madness'; if ithas not already become a verb, it soon will. There is a certain poignancy inall this, since Mabo, the principal litigant in the case that put indigenousland rights on the front page of the newspapers throughout 1993 andresulted in the passing of national land rights legislation, died before theHigh Court reached its decision. There is also the irony that Mabo'scredibility came under question and his own claim was dropped in the finalstages of the case. The High Court's finding in favour of the plaintiffs, notjust as Murray Islanders but as indigenous Australians, has overshadowedMabo's fate, and indeed the long drawn-out proceedings in the SupremeCourt of Queensland, which the High Court directed to determine mattersof fact in relation to Murray Island.

The hearings in the Queensland Supreme Court have not been quiteforgotten, however. Some of the critics of the 'Mabo Bill' have argued thatthe High Court's decision was flawed, either because it was based on amisreading of 'the facts', or because the process by which the High Courtdirected that 'the facts' be determined was unsatisfactory. Thus a formerQueensland Governor, Sir Walter Campbell, has been reported as sayingthat a decision having major implications for mainland Australia shouldnot have been based on a case concerning Murray Islanders, who were notAborigines, but Melanesians, and not nomads but cultivators. Sir Walterquoted former Queensland judge, Peter Connolly QC, to the effect that theMurray Islanders were 'millennia ahead of the palaeolithics (Stone Agepeople) [i.e. Aborigines] in terms of social organisation'.1 Along differentlines, a Reader in Law at the University of Queensland, Dr John Forbes,has suggested that evidence brought by the plaintiffs in support of theirclaim was unsatisfactory in a number of respects.2 Some of these criticismshave been reproduced for readers in a scurrilous booklet by Tim Hewatentitled Who Made the Mabo Mess?J. Both works begin from certainmisgivings expressed by Queensland Supreme Court Justice MartinMoynihan in his report on the facts to the High Court.4

Koiki Mabo's case had been well and truly won when the NativeTitle Act 1993 was passed on December 21; but since the legitimacy of theHigh Court's decision and the new Act is still contested, it may be as wellto respond to these criticisms, and in the process to review a case which

stands apart from the rest of Australian land rights litigation. I do so not asa lawyer but as an anthropologist, who has spent many months on MurrayIsland over more than 30 years, who advised the counsel for the plaintiffsin the later stages of the hearings, and who appeared in the Supreme Courtas an expert witness. Briefly, I shall attempt to illuminate some aspects ofthe case which seem to be problematic, by viewing them in the context ofMeriam culture and history. I will also take the opportunity to reappraisethe standing of Koiki Mabo whose credibility Justice Moynihan, and inturn Dr Forbes and Tim Hewat, have called into question.

The 'difference' between Torres Strait Islanders and Aborigines

There is some substance to the argument that there are cultural differencesbetween Aborigines and Torres Strait Islanders, the group to which theMurray Islanders or Meriam belong. Indeed, before the High Court handeddown its decision, it seemed to me possible that it would find in favour ofthe Meriam, limiting its decision to their island, or perhaps to Torres Strait.Islanders certainly regard themselves as different from Aborigines.However, it seems that the differences are not so great as to render the twogroups incomparable; what counts in the final analysis is that Aboriginesand Islanders are both Australian indigenous minorities with distinctivekinds of interest in land.

The Meriam are related physically, linguistically and culturally, tothe people of southern Papua, and have maintained regular trading relationswith them over centuries. Although they drew more on marine resourcesthan these neighbours, they were also agriculturalists, growing much thesame kinds of crops.

The adoption of agriculture has assumed a critical place in the theoryof cultural evolution. In Torres Strait, it appears less an historic watershed,than an option to which certain communities may have been led by -although we can only speculate - such factors as soil fertility, predictablerainfall and population pressure. The sedentary settlements and thesubstantial houses that the agricultural option facilitated, providedEuropean observers with the grounds for rating the Islanders moreadvanced (that is, more like themselves) than Aboriginal people, thoughscarcely for transposing the difference to the grand evolutionary scale andsituating them 'millennia ahead1.

The difference in terms of social organisation is not all that striking.Both societies were organised in terms of kinship relations, and werefurther differentiated in terms of age and gender. Like both Papuans andAborigines, the Islanders lacked hereditary chiefs; however senior mengained power through leadership in certain religious cults, membership ofwhich was hereditary. These cults were Papuan in character rather thanAboriginal, featuring the use of masks and drums, the cult of Malu-Bomaion Murray Island being among the most important in the Strait. WithinMeriam society, the cult seems to have conferred status on certain groups

(though it was by no means the only cult), and to have taken political format least to the extent of sending out masked men to terrorise women bynight, and killing women who discovered their secrets. The importance andcharacter of this cult became contentious issues in the case and I shall haveto return to it.

Whatever the original differences between Aborigines and Islandersmay have been, they were increased through the form of colonisation in theStrait. In particular, the Islanders (with the exception of those living aroundThursday Island) were never displaced. Until the second half of thecentury, Europeans used the Strait only as a seaway. When they establisheda permanent presence, it was to protect shipping and to exploit the region'smarine resources, principally pearl shell and trepang, activities for whichthey needed only enough land to repair their boats and process their catch.European seafarers used the Islanders as labourers, but returned them totheir gardens and boats when no longer required. Thus it suited theauthorities to reserve most of the Islands for the use of the Islanders, takingonly small lots for the building of churches, schools and stores.

The administration of the Strait also took an unusual form.Queensland did not annexe the outer islands until 1879 and did notestablish effective control until the mid-1880s. In the interim it left law andorder to the London Missionary Society (LMS), which had arrived in 1871,directing it to work through the government chiefs (called mamoose). TheLMS, coming out of the Congregationalist tradition, encouraged Islandersto participate in the running of the church in the form of deacons andchurch councillors. When the Queensland Government took charge, it wasunder the aegis of a former premier, the Hon. John Douglas, whoestablished an idiosyncratic benevolent despotism, very different from theregimes to which Aborigines were subjected. Regarding the Islanders assuperior to the Aborigines, he instituted a system of government that wasunique in the Pacific at that time, including elected island councils. Thesecouncils advised resident European magistrates (who were also teachers)and served as assessors in the island court. After 1939, they assumed amajor part of the work of local government.5 The continuity in indigenouscontrol of community affairs was a major issue in the case.

Murray Island, or to use its Meriam name, Mer, had as its teacher-magistrate one John Bruce, who had lived there for several years before hisappointment in 1885, and who remained in the job until 1922. It seems thathe acquired a grasp of the Meriam language and a considerable knowledgeof Meriam custom, which he put at the disposal of the anthropologist A.C.Haddon, and the Cambridge University Anthropological expedition of1898.6 He also brought this expertise to the hearing of many land disputesthat came before the island court, attempting it would seem, to implement,though perhaps also to regularise, indigenous rules about inheritance andlocal knowledge about boundaries. The court books, which record thedecisions that he and later the island councils reached on these matters,were major exhibits in the Queensland hearings.

10

Enjoying unimpeded access to their islands enabled the Islanders to believethat they still owned them. The Queensland Government encouraged themin this belief because until the 1960s it wanted to prevent them frommoving to the mainland. Thus, they saw little reason to join the Aboriginalclamour for land rights in the 1970s. It was only in the early 1980s thatthey became aware that the land they lived on was reserved for their use,but belonged to the Crown.7 The island councils, by that time formed intoan Island Coordinating Council, greeted this discovery with dismay:unanimously rejecting the Premier's offer of a 30-year lease, theydemanded inalienable freehold title. However, having had more than 40years experience of dealing with the State Government, they entered intonegotiation, eventually settling for a modified version of a Deed of Grantin Trust, which gave them indefinite occupancy of their ancestral lands,reversible only by the Governor in Council. The Mer Council was the onlyone to refuse, awaiting the outcome of the so-called Mabo case, which hadbeen brought in 1982.

The origins of the case

That it was Mer that held out was consistent with the island's strongattachment to land. Apart from the economic value of land for the Meriam,it was a source of individual and family prestige, and thus of conflict. Itseconomic importance had been somewhat reduced by the 1980s as theMeriam increased their dependence on the welfare economy, but itremained important for residential purposes, in a village that was becomingincreasingly crowded. Mer's stand was also consistent with its longstruggle to preserve its autonomy. However, it had no experience of legalproceedings, and would probably not have undertaken them had it not beenfor the initiative of Koiki Mabo, a Meriam long resident on the mainland.

Koiki Mabo, like many of his generation, had left the Strait at thebeginning of the 1960s in search of work, adventure and freedom fromgovernment controls. Unlike them, however, he had moved outsideIslander circles, meeting radical unionists on the North Queenslandwaterfront, Aboriginal activists, and academics with an interest inindigenous matters such as Henry Reynolds and Noel Loos at James CookUniversity. These contacts came to the notice of the Queenslandauthorities, who advised the Mer Council to bar him from the island.Reports that he had rejected Christianity would have strengthened thecouncil in this. He was not able to return until mid-1977.

Mabo had not been part of the legal action by Carlemo Wacando andothers to challenge the 1879 annexation of Darnley Island.8 He was,however, well informed about it, since the Torres United Party was basedin Townsville. In 1980 Mabo attended a conference on land rights inTownsville, and it was there, in discussion with an anthropologist Dr NonieSharp, Dr H.C. Coombs, and Professor Garth Nettheim, that the plan was

11

laid. Also present was the Anglican priest, Father David Passi. GregMclntyre and Barbara Hocking, who were also present at the conference,became the barrister and solicitor during the early stages of the case.

Mabo became the first plaintiff, but he did not proceed alone. To doso would have been to put his claim on a shaky footing, since the MerCouncil had resolved at one time that those who left the island forfeitedtheir land. The Council did not adhere to this position in the case of anyonewishing to return, but the attitude lingered, some even referring toemigrants as 'ex-Islanders'. It was therefore necessary to recruit Merresidents. Mabo's father's sister, Celuia Salee, who was caretaking thefamily land, was an obvious choice. Father Passi persuaded the familyhead, Sam Passi to become a plaintiff on the family's behalf. The two laterwithdrew, partly because of Queensland Government pressure and partlythrough annoyance at a newspaper report, suggesting that Koiki Maboexpected to become 'King of Murray' when he won the case. David Passireturned to the case in 1989. The fourth plaintiff, James Rice, was an islandcouncillor.

The Passis were of particular importance as descendants of one ofthe hereditary leaders of the Malu-Bomai cult. Mabo claimed descent fromanother line, though as we shall see, his claim was contested. Nevertheless,the identity of the litigants provided substance to claims of continuitybetween the pre-colonial and colonial societies.

The statement of claim argued not merely that the plaintiffs and theirforbears had been in continuous occupation of the island - a fact that wasnever contested - but that a system of ownership had existed 'from timeimmemorial', having been maintained within the framework of a mode ofgovernment. The supposed absence of such a system was a key assumptionof the terra nullius doctrine.

The Queensland hearings

Although the case began in 1982, the determination of facts in the SupremeCourt did not begin until 1989. The intervening time was taken up by avariety of delays, including Queensland's attempt to abort the case bypassing retrospective legislation, which the High Court overturned by anarrow margin on the grounds that it was in conflict with the RacialDiscrimination Act 1975.

There had been no previous case of this kind before a Queenslandcourt and Justice Moynihan had to improvise when it came to hearingIslanders' evidence. Statements such as, 'My father showed me theboundary', or 'My mother told me that this place belonged to her father',would normally have been regarded as hearsay, and as such, not acceptableevidence. This provided the Queensland counsels with endlessopportunities to interrupt the plaintiffs' case, until the judge ruled that hewould take their objections as heard, and decide the matter later.

12

Meriam evidence lasted many days and at one stage the court moved toMer, hearing witnesses too old to leave the island, and visiting some of theplaces referred to in the hearings. The film Land Bilong Islanders recordsthis visit. Once the "hearsay" question had been resolved, the witnessesseem to have been given respectful attention, although judge, lawyers andreporters must at times have had difficulty in following them. Even thoughI am familiar with Torres Strait English and the matters that were beingdiscussed, I have found sections of the transcripts incomprehensible.

Forbes, by quoting selectively, manages to convey the impressionthat Justice Moynihan was concerned about the use of interpreters andperhaps suspected some kind of manipulation of evidence.9 Explaining thathe granted an interpreter when this was requested, the Justice observes: "Ona number of occasions I soon gained the impression that the witness bothunderstood and could speak English ...'.10 This rather loses sight of thepossibility that the witnesses might have some acquaintance with English,but given the importance of the proceedings, might not want to riskmisunderstanding or make fools of themselves (a matter on whichIslanders are sensitive). While Mabo and Passi spoke fluent, idiomaticEnglish, most Meriam over 50 were comfortable only in Meriam andTorres Strait pidgin (kriol or broken). However, Justice Moynihan did notattribute a sinister intent to the resort to interpreters, suggesting that thewitness may have "desired the opportunity to collaborate with theinterpreter as a form of social support. The arrangement also gave anopportunity to, in effect, hear the question twice and time for the witness tocollect his or her thoughts and to 'collaborate' with an interpreter on ananswer. I do not suggest that this process necessarily rendered the evidenceunreliable, on occasion it may have enhanced its reliability, but it has to beborne in mind".1l

Forbes also puts a sinister interpretation on the Justice's observationthat some witnesses (only one is named) may have been "under some sortof constraint or pressure'. However, this is followed by a recognition thatthis was due either to culturally based considerations, or an unwillingnessto be seen to take sides.12 When witnesses are members of a tightly-knitcommunity, it does not take a conspiracy for them to feel this way.However, it was not the case that all the evidence went in the plaintiffs'favour. The elderly gentleman who speaks in the film (and who gaveevidence) is complaining that Koiki Mabo has misstated the boundarybetween their properties.

The land claims

The claim that the Meriam people had been in some kind of continuousoccupation of their islands 'from time immemorial' could not be contested(although it was argued that they were not the sole occupants). Thisprovided a solid foundation for the High Court's decision that "... the

13

Meriam people are entitled as against the whole world to possession,occupation, use and enjoyment of the lands of the Murray Islands'.13

However, Koiki Mabo and his fellow plaintiffs did not make their claim onbehalf of the whole community. Rather, each claimed particular parts ofthe total land area; and while from the perspective of the land rightsstruggle they might be said to be standing for all Meriam land owners, inthe Meriam context they were acting for themselves. Thus, while allMeriam subscribed to the principle of traditional ownership, somecontested these particular claims. Mabo's own claims proved particularlycontentious; indeed some could see his case only in terms of self-aggrandisement.

Anyone who believed that custom was a matter of calm consensuswould have been disappointed by this response; but it was entirelycharacteristic of the Meriam. The Murray Island court books bear witnessto the contested nature of Meriam land tenure over almost a hundred years.There are various grounds for dispute. One of these is the location ofboundaries which, given the tiny areas involved and the kinds of uses towhich they are put, need to be exact. But, while some are defined by fixedtopographical features such as creek beds, others are marked by stones,stakes or mounds, which can be moved, or by trees which can die orbecome confused with other trees, particularly when the land has not beencleared for a long time. Prolonged absences from the island may also leaveowners uncertain as to where the boundaries lie. Since the area is dividedinto small, often tiny parcels, each owner having a number, sometimes onthe nearby island of Dauar as well as Mer, there is considerable scope fordisagreement and perhaps cheating. Other disputes arise over inheritance.

Land almost invariably passes from parents to children, whethernatural or adopted, or if there are none to the next of kin. Beyond this,practice has been variable. Understanding Meriam practice is complicatedby the rhetorical use of normative statements. For example, it is oftenasserted, as it was in the court hearings, that male kin are preferred overfemale kin (who may receive nothing more than a marriage portion), andthat the eldest son should receive the largest share, if not all. But for theperiod covered by the court books, female children often inherited a shareand brothers often inherited more or less equally. In the case of the Passifamily, the eldest, Sam, held land on behalf not only of his siblings, but offirst cousins as well. However, this was a somewhat unusual case, sinceseveral of the other members were unmarried, while others (includingDavid) lived away from the island for long periods. Moreover, there wasno question that the other members were not entitled to the use of land. TheHigh Court found this case difficult to construe, partly because David Passiexplained the situation in terms of customary principle rather thancontingency. The usual practice was either for parents to divide the landamong their children, or for the children to do so after their parents' death;for cousins to hold land undivided was unusual.

14

The inconsistency between customary precept and practice was sometimesexplained away as a consequence of change. Certainly, the move, in the1930s and 1940s, from the traditional villages around the circumference ofMer and on Dauar, to one compact village near the church, school andstore, had been achieved by a variety of irregular means, includingpurchase. (The death of many of the original owners, around the turn of thecentury, had created the space for outsiders to come in.) Garden land wasnot subject to radical changes of this kind, but the pressure on land hadcertainly varied over the years, with fluctuations in population, and thedegree of dependence on "bush tucker' as against store foods; studies onMelanesian land tenure suggest that such factors affect the strictness withwhich rules are followed.

Contrary to the normative assertions of witnesses, however, theevidence suggests that practice was always fairly flexible. According to theCambridge Reports, owners seemed to exercise a good deal of discretion,to the extent of disinheriting sons, and in the sharing out of the variousplots among heirs.14 In later years, the council encouraged them to writewills, but often the determination of a deceased owner's intention dependedon oral testimony.15

The widespread practice of adoption proved a particularly potentsource of dispute. In principle, an adopted child - who ought to be of thesame 'blood' as one of the adopting parents - acquired the same rights asnatural children, simultaneously forfeiting any claim on its natural parents.In practice, the entitlements of the adopted child were liable to challenge inthe absence of a written will. It might be alleged that the arrangement hadbeen for fostering rather than adoption, or that the adoption arrangementhad been aborted and the child returned to its parents. Some natural parentsseem to have tried to entice their children back when they began earning.Some children ended up without an assured place in either family.

No one openly challenged the claims of Salee, Rice or Passi, thoughthey might have done, particularly in the case of Passi. But manychallenged Mabo's claim. Firstly, it was alleged that he had misstated theboundaries. Having left Mer at the age of fifteen and been absent for manyyears, it is easy to suppose that he had been guessing at them, or simplymaking them up; but his account was detailed and circumstantial, and hecould give an accurate account of the places from memory. More seriously,it was alleged that he was not the adopted son, or had been disinherited.For the record, I had heard his adoptive parents refer to him as their son in1958, and a senior man who had helped me put together genealogies hadalso described him as adopted. It seems possible that, as some alleged, hisadoptive father had disinherited him when he was dying, since Koiki hadnot been home for many years; but this allegation came from a witnesswho had an interest in the matter. There was also a suggestion that he andhis natural father had resumed a relationship, when as a boy he stayed withthe family over six months. When the government paid out supplementarywages to Islanders who had served in the army during World War II, or

15

their heirs, Koiki Mabo had claimed from this man rather than his adoptivefather, both by then dead. That he did so while the case was in progress,led some to allege that he was knowingly misleading the court; sinceAustralian courts did not recognise customary adoption at that time, hemay have concluded that this was the wiser course.

The challenges to Mabo's own claim were serious, but they must beunderstood in the agonistic environment from which they came. In privateconversation, I found the Meriam expansive in their claims for land, anddismissive of the claims of others. Only occasionally did they test theseclaims in the island court. This may have been because the contestantswere not sufficiently sure of their facts to come out with them, or becausethey suspected that the court, because of its composition, would be partialto the other side. For their part, the court members may have beenunwilling to decide against a large and influential family. An examinationof the court books shows that, once the teacher ceased to participate inhearings, the court's decisions became less concerned with consistency andmore responsive to the complex of facts. Suggestive of politicalnervousness, they defer more cases, and refer more to the Queenslandadministration.

As in mainland Australia, though more manifestly so, the Meriamlegal system was politically embedded. In this respect, Mabo was in aweak position compared with the other plaintiffs, having been absent formany years and having few close kin on the island. As such, he was aneasy target, particularly since the advancement of his claim through anAustralian court looked to some like an attempt to by-pass the island court,thus threatening Meriam self-determination. His claims were no moreexpansive than those of some other Meriam, but he seemed to have madethem without an appreciation of his lack of clout and the resistance hewould encounter.

The question of continuity

The statement of claim makes repeated use of the phrase, 'from timeimmemorial', representing the plaintiffs as descendants and heirs of theoriginal inhabitants of Mer, the land tenure system as at least continuouswith, if not the same as, what had been practiced before the arrival ofEuropeans, and the contemporary culture and society as being insignificant respects traditional. At a later stage, the counsel for theplaintiffs spoke of their rights 'flowing along a continuum of a dynamicand flexible culture'. Continuity of course is not an all or nothing affair,and it leaves hanging the question of whether what survives remainsimportant, rather than mere folkloric curiosity. Moreover, the oldinstitutions may survive, but assume a different character in a colonialcontext. Tradition, a term that also appears in the statements of claim andof the facts, is no less tricky. Such subtleties can scarcely be risked inadversarial statements, and are hazardous in the court room situation, yet

16

they are bound to arise. I had explored them in my book16 and was calledupon to comment on various statements I had made when I was givingevidence; but I think they would have arisen anyway. Certainly JusticeMoynihan gave extended consideration to them in his finding, choosing toemphasise the extent of change and the centrality of institutions such as theisland court introduced as a result of colonisation.

The Mabo case raised a set of questions rather different from thosearising in Aboriginal land cases. There was no question that the present dayoccupants of Mer were the direct descendants of those who had lived therewhen the missionaries arrived in 1871, but their 'occupation' now includedthe supervision of inheritance and the settlement of disputes by an islandcourt which, though manned by Islanders, was established and maintainedby the Queensland Government. The defence argued that this constituted asubstitution of indigenous practice rather than a continuation of it. Theplaintiffs argued that the decisions of the court were informed by Meriamcustom, but it was another matter to prove that the system of landownership was 'the same' as that existing a hundred and more years ago. Adocument of 1826 stated that there were boundaries between lots, but saidnothing about the mode of inheritance. Strictly speaking, one could onlyargue that there must have been some kind of land tenure system, or lifewould have become intolerable. One could refer the court to numerousaccounts of similar systems of land tenure in Papua New Guinea. Suchsystems were subject to change in response to such endogenous factors asshifting population pressure and warfare, but were nevertheless regardedby the colonial authorities and the Papua New Guinea Government ascustomary. The defence nevertheless argued that the Meriam system hadbeen radically changed as a result of external influences, at one stage,proposing that since Melanesian inheritance was always patrilineal, theinclusion of female heirs was evidence of Polynesian influence.

This argument is anthropologically wrong, but if one wishes to berigorous, as Justice Moynihan was inclined to be, it has to be admitted thatspecific evidence as to what land tenure was like on Mer before the 1890sis thin. The first written account, by the missionary Hunt, contradicted in anumber of respects, the information included in the Cambridge Reportswhich was closer to the plaintiffs' version.17 The account in the CambridgeReports was based mainly on information obtained from the teacher, JohnBruce, who it will be recalled, knew the language and had a deep interestin the culture. However, this source cannot be regarded as whollyobjective, since Bruce, as administrator, claimed to have brought regularityto Meriam land tenure. Might he not, like many colonial administrators,have changed it in the process, believing that he understood the systembetter than the Meriam did, or attempting to make it more 'fair'? Since thecourt's decisions were now backed by the power of the State, Bruce couldalso be said to have changed the system from tribal anarchy to western law.

In 1912, Bruce reported that he had eliminated the use of 'club law'in the settlement of disputes. Justice Moynihan gave some weight to this

17

statement, as perhaps indicating that before the arrival of Europeansdisputes had been settled by force rather than by law. My ownunderstanding is informed by the accounts of settlement disputes insegmentary societies. I have come to regard law in these societies assomething that operates subject to (and is in greater or lesser degreeinfluenced by) political relations. However, the statement of claim arguedin terms of a system of arbitration, if not adjudication.

In the same document, several of the plaintiffs are described asdescendants of the traditional leaders known as the 'Aiets' of the Meriampeople. The statement of facts asserts that: 'Before annexation, disputesconcerning land were resolved traditionally by referring them to the Aiets,being the religious and political leaders of the Meriam people, and to theheads of disputing families, for adjudication and decision according totraditional law. If no resolution was thereby achieved, the dispute couldlead to feuding and open fighting'.

The reference to the 'Aiets' caused some discussion, since none ofthe 19th century accounts refers to it. I had not heard it until Mabomentioned it to me in the late 1970s. However, Ion Idriess's novel TheDrums ofMer, refers to Act as one of the three leaders of the Malu Bomaicult.18 Despite his lurid and romantic story, Idriess made a serious attemptat ethnographic accuracy; he is unlikely to have made the name up, butmay have heard it from Passi, whom his descendants refer to as Aet.19

Whether or not it was a title rather than a name,20 there is no doubt that theleaders of the various Meriam cults were referred to as zogo le, meaningthose associated with supernatural power. What is less clear is the extentand nature of their authority, particularly in the case of the zogo le of MaluBomai, which was the most important cult.

As compared with nineteenth century accounts, those of latter dayMeriam place greater emphasis on the idea of hierarchy and formalauthority, including terms such as 'chief, 'high priest' and even 'king'.Moreover, the Statement of Claim, refers to only two zogo le or acts, ofwhom Mabo and Passi are said to be the descendants, whereas Haddon'saccount of the cult distributes the zogo le role among a larger number ofdescent lines, all of whose members had the right to wear the sacredmasks.21 Idriess's novel by contrast refers to a 'big zogo-zogo le' who isalso a big sorcerer,22 and since the book has been circulating in the Straitfor many years, it is possible that his "heroic" view of Islander society mayhave influenced latter day Meriam perspectives on what is now a remotepast. Drums of Mer is also the only documentary source to mention a'Council of zogo le' hearing land disputes.23 Whether Idriess was told aboutsuch a council, or whether he inferred its existence we do not know.

The question of how many zogo le there were and whether theirpowers were great or small, can be separated from the further question asto whether the Malu-Bomai cult regulated social relations, rather thanmerely being a source of amoral supernatural power. Some confirmationfor the first alternative comes from a series of injunctions couched in

18

archaic language and known as Malu-ra gelar. The word gelar is itselfsignificant since it has the connotation of a rule or law. Identified with thecult it assumes a supernatural sanction. The gist of Malu-ra gelar is thatpeople should not trespass on one another's land or take one another'scrops, practices that were also prohibited by forms of tapu. However, ifboth parties to a dispute believed that they were the rightful owners, theymay have supposed that the prohibitions only applied to the adversary.What the injunctions indisputably affirm, however, is the idea ofownership over land and crops.

Justice Moynihan questioned whether Malu's law had survived theeclipse of the cult, suggesting that it had been rediscovered when Meriamaccessed the Cambridge Reports through me in 1959. Although I heard itfrom several old men before the book arrived, I do not think it was widelyknown among younger folk until the court case. George Passi, in hisevidence for the defence suggested that this was the case, an opinion thatwas corroborated by a friend of mine who said that he did not hear ofMalu's law until he found it in a book of folktales, published in 1970.Nevertheless the principle was generally understood and, I think, observedinto the 1960s, as long as gardening remained important. By this time,however, the council and the island police were the agents of law andorder, and the question as to whether, notwithstanding the ending of thecult, a belief in Malu was a factor in social practice, is not easy to establish.

The statement of claim suggested that the 'Aiets' were still respectedin the community, but it was not clear to me that membership of the twodescent lines commanded respect in its own right. Members of the Passifamily had held positions of prominence over three generations. Passi hadbeen appointed mamoose soon after colonial rule was established; one ofhis sons was a highly regarded priest of the Church of England, though theother sons held no office. Three of his grandsons had been councillors, onea long-serving chairman. However, the other line remained in obscurityuntil the court case. Koiki Mabo's claim to be a "king1, reported probably inan exaggerated form in The Australian newspaper, was not well received ina community that dealt harshly with tall poppies and resented know-it-allsfrom the mainland.24

The argument in the statement of claim that the Malu Bomai cultremained important for Meriam in the 1980s also proved difficult tosustain, although in my judgement it was not altogether misconceived. Theproblem was that the Meriam had been at least nominal Christians from the1870s, and from the time I knew them at least were ardent churchgoers.Differences over competing brands of Christianity had divided thecommunity on a number of occasions. One of the plaintiffs, it will berecalled, was a priest of the Church of England. Early on the missionarieshad destroyed the Malu-Bomai shrine and burned one of the sacred objects;the sacred mask was said to have been buried by the officiants, and thusstill on Mer, but the only surviving object was one of two sacred drums,which was used in church. Some of the songs and dances were also

19

preserved in a modified form. They were occasionally performed as late asthe 1970s for fundraising. Women and children and outsiders were notexcluded, as they had once been, and no account was taken of thehereditary roles. Looking back, it seems to me that these performanceswere more than just entertainment, if less than religious ceremonies: theywere perhaps commemorations of the Meriam past and of a vanishedautochthonous power.

During my first periods of field work, between 1958 to 1961, theMeriam spoke of Malu and Bomai in the rhetoric of the mission as "heathen- or idol - gods'. But they did not think of them as illusions. Although theyhad left the island, they had once existed and had real powers. It was saidthat Jesus Christ and God were more powerful, though I noticed that someinvoked Malu-Bomai in magical spells in connection with areas of life notcovered by Christianity. Father David Passi, in the film Land BilongIslanders and before the court, proposed that Malu was sent by God as aprecursor of the Gospel.25 I did not hear any such idea during my firstround of field work, though it is possible that its seeds were there, waitingfor a more liberal climate such as the 1980s offered. The fact remains thatby this time, it was Christianity in one of a number of forms that engagedpeople's attention. The Pentecostal preacher in Land Bilong Islandersexpressed no such regard for Malu. People perhaps talked more about theold cult, and a memorial in the church yard included the octopus - the formBomai took in landing on Mer, and symbolising the eight Meriam tribes -but the dances have rarely been performed in recent years.

The credibility of Koiki Mabo

Justice Moynihan recognised the credibility of Rice and Passi, even thoughhe did not always accept what they said. But he was harsh in his judgementof Mabo: 'I was not impressed with the creditability of Eddie Mabo. Iwould not be inclined to act on his evidence in a matter bearing on his self-interest (and most of his evidence was of this character in one way oranother) unless it was supported by other creditable evidence1.26 TheJustice also suggested that Mabo was 'quite capable of tailoring his story towhatever shape he perceived would advance his cause in a particularforum'.27 Reading between the lines, I get the impression that JusticeMoynihan did not regard Koiki Mabo as a real Meriam, but rather as anurbanised political activist, who seeing the main chance, made up for hislack of roots by reading books. Compared with the oral tradition, suchknowledge was inauthentic and the feeding back of printed informationinto the oral tradition was destructive of its original character.

I think that some of the claims that Mabo made but the Justicedisbelieved, could have been confirmed, for example, relating to hisexclusion from Mer, and the belief that the Bomai mask had been buried atLas.28 I have already indicated that I believe that he had indeed been

20

adopted by Benny and Maiger Mabo, and that the doubts hanging over thecontinuation of this relationship were not unusual in such cases. I havesuggested that his land claims were over-expansive and politically ill-advised, but the bases on which he made them were well within theMeriam canon. Nor was his use of particular arguments, such as the rightsof the first born son, more opportunistic than that of other Meriam in asimilar situation; the difference was that he had to make all his claims atonce, whereas normally people made their claims one at a time.

I first met Koiki Mabo in 1967, and met him occasionally, from themid-1970s. We talked a lot about Meriam culture, listened to myrecordings of Meriam music and at one point worked together on an articleabout dancing. On his first visit home, in 1977, he took me to his village,Las, and showed me the place where the shrine of Malu Bomai had stood. Ihave to admit that I was surprised that someone who had left Mer aroundthe age of fifteen and had scarcely been back until his forties knew asmuch as he did. Some of it may indeed have come from the CambridgeReports or from Idriess's novel. But much of it did not. He had, forexample, an extensive knowledge of plants, including those used forvarious dance ornaments and implements, which was not to be found inprint. Nor could he have got from books, the vivid, detailed mind picture ofthe land which he presented to the court. The genealogy he recounted wentback further than could be found in the Cambridge Reports.

Koiki Mabo may, as his own testimony suggests, have been aparticularly attentive child and he may have spent more time with hisgrandfather than small Meriam boys usually do. However, it would be amistake to think that by leaving Mer he was forever cut off from the oraltradition. Although he said he was isolated during his early years on themainland, by the mid-1970s there were many elderly Meriam living in orpassing through Townsville. On several occasions he and I interviewedsuch people in search of information. In the long run, I suspect, what hehad heard as a child, what he heard in Townsville, and what he read inbooks at the university, became part of a single web of traditionalknowledge. Inasmuch as many of the things included in the CambridgeReports had been forgotten by the time he was growing up, he 'knew' morethan other Meriam about their past. At the same time, he 'knew' it in adifferent way, not as something that had come to him just in the course ofgrowing up on Mer, but as knowledge that he had searched for. At thesame time, because much of this knowledge came from a vanished past,and because it was not constantly tested against everyday experience, itcould feed his imagination. It led to him challenging the QueenslandGovernment in the High Court. His dream of being an 'Act' and a biglandowner foundered; but he won the recognition of Meriam title. TheMeriam will say that they knew this all the time, but now that he is deadthey wear the tee-shirt with his face against the map of the island.

21

Moynihan's conclusions

While Justice Moynihan declared himself dissatisfied with the confusedand contested evidence supporting the plaintiffs particular claims, hisvaledictory words to the Meriam community, recorded in Land BilongIslanders, indicate that he was impressed by the strength of what one mightcall their culture of territoriality. In his findings, he states that the Meriam'succeed in conveying a strong sense of the observation of propriety inrelation to land.... The knowledge of boundaries is important in respect ofthose concepts of propriety and of the social behaviour respecting them....Such attitudes are rooted in the precontact past ,..'29 However the Justiceseems inclined to see these as something less than law: The attitudes Ihave mentioned are ingrained in the culture of the people ... are a partrather than objectively laid down and enforced by some distinct agency -rather like our (or more likely another age's) concept of good manners. ...In this context, so far as the evidence reveals, I have little difficulty inaccepting that the people of the Murray Islands perceive themselves ashaving an enduring relationship with land on the islands and the seas andreefs surrounding them'.30 Later Justice Moynihan concedes that 'theevidence establishes that Murray Islanders recognise the continuance ofclaims to garden plots and recognise or dispute claims of entitlement byindividuals in respect of those plots'.31

However, Justice Moynihan seems to understand the process ofinheritance and the decisions of the island court primarily as arrangementsto distribute resources and avoid social conflict, characterised by sometendency to consistency. The implication seems to be that this process doesnot amount to law as it is understood in Australian society. He also prefersto suspend judgement on the question of the degree of continuity from alargely unknown pre-colonial culture and the present, and is sceptical ofthe suggestion that the 'Acts' or any other authority decided land disputes inthe old days, or that the island courts have been consciously applyingMalu's law in more recent times.32

The authenticity question

Although Justice Moynihan's findings enabled the High Court to overturnthe terra nullius doctrine, they tend to confirm - intentionally or not - thereproach of inauthenticity that hangs over so many Aboriginal claims onthe mainland.33 This is starting to cloud the expertise of anthropology.

In part this situation stems from the difficulty for anthropologists inhandling the question of cultural continuity. At different times,evolutionary and functionalist anthropologists, as well as those of apolitical economy tendency, have represented 'primitive culture' asirreparably transformed by contact with 'civilisation'. According to anotherview, such cultures survive against all odds, encompassing alieninfluences, yet somehow remaining essentially themselves. But if the first

22

view underestimates the resilience of indigenous cultural reproduction, thesecond tends to a romantic essentialism which short circuits theunderstanding of cultural dynamics. This kind of essentialism concealsprocesses such as cultural revival and the invention of tradition and soconverges with those for whom anything less than the pristine primitive isinauthentic.34

As people become aware of the presence and the possibility ofcultural alternatives, consciousness of their own culture becomes reflexiveand their customs and traditions become reified, even fetishised. Whatwere flexible principles become immutable laws which, ironically, becomethe screens behind which individuals and groups advance new interests.

These remarks apply in some degree to the Meriam. After more thana century of exposure to missionaries, school teachers and governmentofficials, they cannot but have a relativistic view of their culture.Moreover, their sense of the past has been influenced in complex ways bythe experience of being studied by a succession of anthropologists andothers, and - particularly in recent years - by reading what the researchershave written.35 (It is ironic that while anthropologists become credibleexpert witnesses by writing, 'natives' render themselves inauthentic byreading: tainted with literacy it seems they can't go home again!)

But, to take one instance, even if it is true that the Meriam onlyrediscovered Malu's Law in the Cambridge Reports, does not render theirproclamation of it inauthentic. It was not seized upon opportunistically inthe course of preparing the land claim. Its rediscovery (or, as I suspect,return to currency) occurred in the early 1960s, long before the Mabo casewas conceived. The visits of three researchers in quick succession - myself,Wolfgang Laade, and Margaret Lawrie - may have rekindled an interest inthe Meriam past, but the interest would have been ephemeral had it notresonated with contemporary Meriam experience.

The experience I refer to is summed up by the term 'occupation', inthe sense of living on Mer among Meriam people. It refers less to theprecepts and traditions by which Meriam sometimes represent themselvesand their culture, than to the sensuous everyday experience of being there.When I first lived in Mer, occupation included a steady round of gardeningand harvesting, for prestige as well as subsistence, on land that had beeninherited from ancestors, known and unknown, and which bore witness toone's relatedness to those who held adjacent lots. This occupation was incrisis, however, as the younger men, unable to earn money at home, lookedto a new life among white people on the mainland. Those who still valuedisland custom (itself by that time a self conscious mix of Meriam SouthSea and European practices) could no longer take it for granted, but mustdefend it. It was at this moment, in Walter Benjamin's words, that they'seized hold of a memory as it flashed up at a moment of danger'.36 Twentyyears later, gardening had lost much of its former importance, but when theMeriam discovered that it was the Crown that owned their islands, and allthe government would offer them was a 50-year lease, land became the

23

material condition for the community's survival. Meanwhile, for those onthe mainland, the dream of modernity had faded and many had begun tothink of going home, or if that was not a possibility, to worry about theirland. To be an Islander - even on the mainland - one must have an island,and to have an island, one must own a piece of it. Once again they graspedtheir past as it flashed by, and went to law.

Notes

1 The Australian 27 October 1993.

2 Forbes, J. 1993. 'Mabo decision leaves some vital queries on evidenceunanswered', The Australian Financial Review 30 June 1993.

3 Hewat, T. 1993. Who Made the Mabo Mess?, Wright Books, Brighton, Victoria.

4 Moynihan, M. 1990. Determination Pursuant to Reference of 27 February, 1986,by the High Court of Australia to the Supreme Court of Queensland to hear anddetermine all issues of fact raised by the pleadings, particulars and furtherparticulars in High Court Action B12 of 1982.

5 Beckett, J. 1987. Torres Strait Islanders: Custom and Colonialism, CambridgeUniversity Press, Cambridge and Sydney, pp. 45-60.

6 Haddon, A.C. 1908. Sociology, Magic and Religion of the Eastern Islanders:Reports of the Cambridge Anthropological Expedition to Torres Strait, VolumeVI, Cambridge University Press, Cambridge.

7 Beckett, op. cit., pp. 190-91.

8 Sharp, N. 1993. Stars ofTagai: The Torres Strait Islanders, Aboriginal StudiesPress, Canberra, p. 279.

9 Forbes, op. cit.

10 Moynihan, op. cit., p. 66.

11 Ibid.

12 Forbes, op. cit.

13 Mabo v Queensland, no. 2, 1992. 175 CLR, p. 2.

14 Haddon, op. cit., pp. 163-68.

15 I suspect that some parents delayed making a will in order to maintain controlover their children.

16 Beckett, op. cit.

17 Hunt, A.E. 1899. 'Ethnographical notes on the Murray Islands, Torres Strait',Journal of the Royal Anthropological Institute, Vol. XXVIII: 5-18; Haddon, op.cit., pp. 163-68.

24

18 Idriess, I.L. 1938. Drums ofMer, Angus and Robertson, Sydney, p. 7.

19 Idriess also consulted Rev. William MacFarlane, an Anglican priest who collectedanthropological material in the Strait between the wars, and wrote an introductionto the book.

20 Since hereditary tides are generally absent from Torres Strait, it may be that Actwas a personal name, owned - like other names - by certain descent linesassociated with the cult of Malu Bomai. From such a practice it is a short step tothe idea of tide.

21 Haddon, op. cit., p. 286.

22 Idriess, op. cit., p. 6.

23 Ibid., p. 33.

24 Beckett, op. cit., p. 112.

25 Sharp, op. cit, pp. 108-110.

26 Moynihan, op. cit., p. 71.

27 Ibid., p. 70.

28 I heard this story as early as 1958, and indeed it is probable that the custodians ofthe sacred mask would have attempted to conceal it from the missionaries.

29 Moynihan, op. cit., p. 157.

30 Ibid.

31 Ibid., p. 178.

32 Ibid., pp. 191-93.

33 See for example, Jacobs, J.M. 1988. "The construction of identity', in J. Beckett(ed.) Past and Present: The Construction of Aboriginally, Aboriginal StudiesPress, Canberra.

34 Sharp, N. 1993. 'No ordinary case: reflections upon Mabo No. 2', in Essays on theMabo Decision, Law Book Company, Sydney, p. 30. Sharp's stress on 'Malu'slaw' in her attempt to 'spiritualise' Meriam land tenure, is perhaps an instance ofthis tendency.

35 Apart from the Cambridge Expedition in 1898 and the work of the missionary,William MacFarlane in the 1920s, at least twelve researchers have visited Mersince my visits in 1958-1961.

36 Benjamin, W. 1969. Illuminations, Shoken Books, New York, p. 255.

3. Origins and implications of Mabo: an historicalperspective

H. Reynolds

In the Mabo judgement the High Court buried the doctrine of terra nullius.In its time it held sway over both history and jurisprudence. Eachdiscipline underpinned the other. Blackburn's Gove land rights judgementof 1971 rested on his interpretation of history as much as on his assessmentof the law.1

It is equally true that traditional interpretations of both law andhistory ride in tandem through the dissenting Mabo judgement of JusticeDawson. Many of those attacking the High Court over Mabo have turnedto the interpretations of history implicit in the judgement. Bad history, theyargue, produces bad law. Given the importance of these questions it isnecessary to examine some of the many ways in which jurisprudence andhistoriography are woven through the judgement.

Sovereignty and property

Traditional accounts of both law and history invariably fuse the twodistinct legal concepts of sovereignty and property. This is true ofBlackburn's judgement of 1971 and of the influential article by Allan Frost'New South Wales as Terra Nullius' published ten years later.2 Both judgeand historian slide continuously and unconsciously from one concept to theother. Like generations of Australian historians and jurists, they fail todistinguish between the radical title which stems from sovereignty and thebeneficial ownership of the land. It is this conflation of concepts whichunderpinned terra nullius. Justice Brennan put his finger on the problem,remarking that:

It is only the fallacy of equating sovereignty and beneficial ownership of landthat gives rise to the notion that native title is extinguished by the acquisition ofsovereignty. ... What the Crown acquired was a radical title to land and asovereign political power over land, the sum of which is not tantamount toabsolute ownership of land.3

Terra Nullius and land use

None of the six judges who upheld Mabo's claim gave any consideration tothe view frequently propounded by historians that Australia was a terranullius because the Aborigines did not use the land properly or have apolitical system based on chiefs. As a result this issue was at the centre of

26

much of the conservative criticism of the High Court. A common view isthat while native title might legitimately apply to the Murray Islanders, itshould not be extended to mainland Australia because the Aborigines had anomadic life-style and could not therefore establish a claim to the land. Avariation of this argument is that whatever contemporary opinion might benow, in the late 18th century there was no recognition of property rights ofhunters and gatherers. The High Court therefore projected onto the past theattitudes and values of the present day. In getting their history wrong theymisinterpreted the law.

The critics of the Court are wrong about both the jurisprudence andthe practice of the 18th century. North American Indians were consideredto hold native title to their lands regardless of their pattern of land use. Inhis classic study The Acquisition and Government of Backward Territoryin International Law, Lindley summed up the established practice:

Indian possession or occupation was considered with reference to their habitsand modes of life; their hunting grounds were as much in their possession as thecleared fields of the whites, and their rights to its exclusive enjoyment in theirown way and for their own purposes were as much respected, until theyabandoned them, made a cession to the government, or an authorised sale to anindividual.4

The rights of hunters and gatherers had support in the international law ofthe late 18th century and especially in the law of possession. Both theEnglish common law and international law gave great strength to thosewho were the original possessors of a tract of land. In his book The Law ofNations, first published in 1788 von Martens argued that:

If possession be immemorial; if there exists no possession anterior to it; it isundoubtedly sufficient to set aside all the pretensions of others ... it is theconsequence of the natural impossibility for any other to prove a right betterthan that of possession.5

In his judgement Brennan made a similar observation. The ownership ofland in the exclusive occupation of a people, he argued 'must be vested inthat people: land is susceptible of ownership and there are no otherowners1.6

Eighteenth century law was also able to recognise the land tenure oftribal people who lived by hunting and herding. The most eminent legalscholar of the age, Christian Wolff, determined that such groups had whathe called a mixed community holding over their land. The fact that theymoved about their territory did not effect their tenure. Families who'wandered through uncultivated places' used their lands in 'alternation'. Buttheir ownership was not lost *by non-user'. He explained that

if the families have no settled abode, but wander through the uncultivated wilds,in that case, nevertheless, they are understood to have tacitly agreed that thelands in that territory in which they change their abode as they please, are heldin common, subject to the use of individuals, and it is not to be doubted but that

27

it is their intention then they should not be deprived of it by outsiders. Thereforethey are supposed to have occupied that territory as far as concerns the landssubject to their use, and consequently to have jointly acquired the ownership ofthose lands, so that the use of them belongs to all without distinction.7

Colonial common law

The assenting judges determined that at the time of Australian settlementthere was a common law of the Empire which embodied the principles ofnative or Indian title. It recognised a form of tenure based on prioroccupation which was protected by law in a colony of settlement becausethe indigenous people became subjects from the assumption ofsovereignty. Justices Deane and Gaudron believed that the strongassumption of the common law was that any pre-existing native interestswere protected under the law of the Colony once established. 'It follows',they argued

from what has been said in earlier pans of this judgement that the application ofsettled principle to well-known facts leads to the conclusion that the commonlaw applicable to the Colony in 1788, and thereafter until altered by validlegislation, preserved and protected the pre-existing claims of Aboriginal tribesor communities to particular areas of land with which they were speciallyidentified, either solely or with others, by occupation or use for economic,social or ritual purposes. Under the law of the Colony they were entitled tocontinue in the occupation or use of those lands as the holders of a common lawnative tide which was a burden upon and reduced the title of the Crown.8

Deane, Gaudron and Brennan all refer to the important 1957 judgement byLord Denning in the Privy Council in which he enunciated the generalprinciples which had underlined the property rights of indigenous people inall parts of the British Empire.

In inquiring ... what rights are recognized, there is one guiding principle. It isthis: The courts will assume that the British Crown intends that the rights ofproperty of the inhabitants are to be fully respected. Whilst, therefore, theBritish Crown, as Sovereign, can make laws enabling it compulsorily to acquireland for public purposes, it will see that proper compensation is awarded toevery one of the inhabitants who has by native law an interest in it: and thecourts will declare the inhabitants entitled to compensation according to theirinterests even though those interests are of a kind unknown to English law.9

What happened in 1788?

The High Court was adamant that the Crown did not become the beneficialowner of all the land in Eastern Australia as a result of the claim ofsovereignty in 1788. There was no apocalyptic act of state dispossessingthe indigenous people over half a continent. 'We know what was done',Deane and Gaudron noted, 'and it is plain that what was done (did not)constitute a specific expropriation of pre-existing native interests in the

28

lands of the Colony1. The claim of sovereignty over the northern TorresStrait did not extinguish the property rights of the Meriam people nor didthe comparable claims of sovereignty in 1788, 1824 and 1829 expropriatethe indigenous people of mainland Australia. Indigenous rights ran on intoEuropean Australia. But the question which follows is how and when didextinguishment take place?

Why was native title not respected in 1788?

It was a question which the Court had to address. It was tackled by JusticesDeane and Gaudron. The great problem is the absence of specificinstructions about Aboriginal land. The surviving documents tell us littleone way or another. Deane and Gaudron argue that the absence of clearinstructions strongly suggest that the common law traditions continued.Silence suggests continuity rather than the reverse. It was, they argue,

unlikely that there was any actual but unexpressed intent on the part of theCrown that the act of State establishing the colony should reverse theassumption of the common law or extinguish existing native interests.10

Given the lack of detailed instructions, they argue even more strongly,

it seems to us to be simply not arguable that there was anything in the act ofState establishing the Colony which constituted either an expropriation orextinguishment of any existing native interests in the vast areas of land in thenew Colony or a negation or reversal of the strong assumption of the commonlaw that such native interests were respected and protected under the law of thecolony after its establishment.11

Extinguishment of native title

If indigenous property rights survived the various claims of sovereigntyhow were they actually extinguished? The Court was quite clear that nativetitle, like any other form of title, could be extinguished by the Crownexercising sovereign power. But the intention to extinguish had to be clearand plain and effected under the power of some statute. In actual practicethe dispossession of the Aborigines may often have been 'wrongful' in thewords of Deane and Gaudron. They explain that:

Notwithstanding that the rights of use or occupancy under a common law nativetitle recognized by the law of a settled British Colony were binding upon theCrown, the native inhabitants of such a Colony in the eighteenth century werein an essentially helpless position if their title was wrongfully denied orextinguished or their possession was wrongfully terminated by the Crown orthose acting on its behalf. In theory, the native inhabitants were entitled toinvoke the protection of the common law in a local court (when established) or,in some circumstances, in the courts at Westminster. In practice, there is anelement of the absurd about the suggestion that it would have even occurred to

29

the native inhabitants of a new British Colony that they should bringproceedings in a British court against the British Crown to vindicate their rightsunder a common law of which they would be likely to know nothing.12

The extinguishment of Aboriginal rights did not take place whensovereignty was claimed, but gradually and in a piecemeal fashion over thewhole span of Australian history since 1788. Justice Brennan determinedthat:

As the Governments of the Australian Colonies and, latterly, the Government ofthe Commonwealth, States and Territories have alienated or appropriated totheir own purposes most of the land in this country during the last 200 years, theAustralian Aboriginal peoples have been substantially dispossessed of theirtraditional lands. They were dispossessed by the Crown's exercise of itssovereign powers to grant land to whom it chose and to appropriate to itself thebeneficial ownership of parcels of land for the Crown's purposes. Aboriginalrights and interests were not stripped away by operation of the common law onfirst settlement by British colonists, but by the exercise of a sovereign authorityover land exercised recurrently by Governments. To treat the dispossession ofthe Australian Aborigines as the working out of their Crown's acquisition ofownership of all land on first settlement is contrary to history. Aborigines weredispossessed of their land parcel by parcel, to make way for expanding colonialsettlement. Their dispossession underwrote the development of the nation.13

Survival of native title

The Court concluded that the property rights of the Meriam peoplesurvived the claim of sovereignty in 1879 and everything else theQueensland Government had done since then. The implication was cl